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USCIS Releases Guidance for H-4 Employment Authorization

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.

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United States Citizenship and Immigration Services (USCIS) released guidance and frequently asked questions on the filing of employment authorization applications for spouses of certain H-1B visa holders.

These spouses, who hold H-4 visas, became eligible for employment authorization on May 26, 2015, under a final rule issued in February. The rule provides work authorization to the spouses of H-1B workers who have been approved to seek employment-based lawful permanent resident status or whose H-1B status has been extended beyond the six-year limit. H-1B workers who are seeking lawful permanent residence to live and work in the U.S. can be extended beyond the regular six-year limit on their visa.

Until now, H-4 visa holders had been prohibited from earning an income.

USCIS Director Leon Rodriguez explained during a press teleconference in February that the change will bring U.S. immigration policies more in line with laws of other countries that “compete to attract similar highly skilled workers.”

The Council for Global Immigration and the Society for Human Resource Management commended the original announcement. “Allowing spouses of highly educated foreign-born professionals to work here eliminates an unnecessary burden for … U.S. employers, in the competition for top world talent. Improving their ability to attract and retain employees will pay dividends to the U.S. economy and American job creation,” the organizations said in a joint statement. “Given all the good that work authorization brings, we believe it should be extended to all employment-based classes of dependent spouses and partners, and it will remain a priority for our members.”

How to Apply

Applicants will need to submit an I-765 employment authorization application with supporting evidence and the required $380 fee in order to receive an Employment Authorization Document (EAD). They will be required to show supporting evidence to include proof of marriage, proof of H-1B and H-4 status, proof that the H-1B holder was either approved to seek legal permanent resident status or has received an H-1B extension, a government-issued photo ID, and passport-style photos for the EAD. Documents that are in a foreign language must be accompanied by a full English translation.

Applications must be submitted in hard copy and are not eligible for electronic filing. The current processing time for employment authorization applications is 90 days.

H-4 spouses won’t be required to show economic need for employment to obtain an EAD. There will not be a cap on the number of EADs issued to H-4 holders, nor any prohibitions on working for the same employer as their spouses or restricting certain occupations.

H-4 workers with work authorization may start their own businesses and employ others, USCIS said. Newly authorized individuals who have not worked in the United States before will need to apply for a Social Security number before working.

Employment authorization granted to H-4 spouses will be valid through the expiration date of the individual’s then-current H-4 status, and may be extended as long as all qualifying criteria continue to be met.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.